When the court appoints a guardian of property or guardian of the person the court must make a finding of incapacity (ss. 25(1) and 55(1) of the Substitute Decisions Act, SO 1992, c 30 (the “SDA”). Often parties will obtain or seek to obtain a formal capacity assessment to provide to the court as evidence of incapacity. However, there is no requirement that a formal capacity assessment be conducted. The court can make a finding of incapacity based on other medical evidence. This was the case in Grant v. Robinson, 2024 ONSC 1558 (CanLII) (“Grant”), a decision released earlier this year. As noted by the court in Grant, the SDA does not set out the nature of the evidence that an applicant must file to show that an individual is incapable of managing property.
In Grant the applicant sought to be appointed the guardian of property and guardian of the person of her grandmother. Her grandmother had a power of attorney for property (though not a “continuing” power of attorney) and personal care (the “POA”). The granddaughter did not allege that her grandmother was incapable at the time of signing the POA; rather, she claimed that the acting attorney (a grandson) had neglected his duties. The grandson, while properly served, had not attended or participated in any of the proceedings.
The granddaughter provided evidence to show that her grandmother lacked capacity to manage property and to manage her personal care. There was evidence that the 81 year old grandmother was diagnosed with schizophrenia in 2014 and was suspected of having dementia in 2021. A current letter from the grandmother’s doctor indicated that the grandmother has advanced Alzheimer’s dementia. The doctor noted that her patient could not continued independent activities of daily living including leaving the long-term care home where she resided. The doctor noted that her patient could not manage her own banking. The court concluded that there was “sufficient medical evidence” that the grandmother’s advanced Alzheimer’s and dementia had impacted her cognitive function and she was not able to manage her property.
Grant is a helpful reminder that an applicant is not required to provide the court with a capacity assessment, or to seek an order that a capacity assessment be conducted on the incapable person. If the applicant provides the court with sufficient medical evidence that the person is incapable then the court can make a finding of incapacity absent a formal assessment.
